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RIBIC v. SLOVENIA - 20965/03 [2010] ECHR 1552 (19 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1552.html
Cite as:
[2010] ECHR 1552
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THIRD
SECTION
CASE OF
RIBIČ v. SLOVENIA
(Application
no. 20965/03)
JUDGMENT
STRASBOURG
19 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ribič v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 20965/03) against the Republic
of Slovenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovenian national, Mr Matija Ribič
(“the applicant”), on 24 June 2003.
The
applicant was represented by Mr B. Verstovšek, a lawyer
practising in Celje. The Slovenian Government (“the
Government”) were represented by their Agent, Mr Lucijan
Bembič, State Attorney-General.
The applicant alleged under Article 6 §
1 of the Convention that his right to a fair trial had been infringed
by the excessive length of the civil proceedings. In substance, he
also complained under Article 13 of the Convention of the lack
of an effective domestic remedy in this respect.
On
23 May 2007 the President of the Third Section decided to inform the
Government of the application and to request them to submit
information under Rule 54 § 2 (a) of the Rules of Court.
Further to receipt of the information requested, the President, on
23 October 2008, decided to invite the Government to submit
written observations on the admissibility and merits of the case
(Rule 54 § 2(b) of the Rules). It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1971 and lives in Frankolovo.
On 7 March 1997 the applicant was injured in an
accident at work. The applicant's employer had taken out insurance
with the insurance company ZM.
A. The main proceedings
On
3 September 1998 the applicant instituted civil proceedings against
ZM in the Celje District Court (OkroZno sodišče v
Celju) seeking damages for the injuries sustained. He also sought
an exemption from paying court fees.
Between
27 December 1999 and 28 February 2001 the applicant lodged
preliminary written submissions and adduced evidence four times.
The
first hearing was held on 27 September 2000.
On
27 October 2000 the court appointed a medical expert. On 18 December
2000 the appointed expert submitted his report.
On
4 April 2001 the court held another hearing and decided to deliver a
written judgment. The judgment, upholding the applicant's claim in
part, was served on the applicant on 25 October 2001.
On
7 November 2001 the applicant appealed to the Celje Higher Court
(Višje sodišče v Celju). He also requested
the first-instance court to rectify its judgment.
On
9 November 2001 the first-instance court rectified
the judgment of 4 April 2001.
On
14 May 2003 the Celje Higher Court upheld the applicant's appeal in
part and modified the first-instance court's judgment accordingly.
That decision was served on the applicant on 5 June 2003.
On
20 June 2003 the applicant lodged an appeal on points of law with the
Supreme Court (Vrhovno sodišče), which was
rejected on 1 April 2004 as the value of the claim fell
below the statutory threshold. That decision was served on the
applicant on 23 April 2004.
B. The proceedings under the 2006 Act
On
23 May 2007 the respondent Government were given notice of the
application. The Government was asked to provide information as to
whether section 25 of the 2006 Act applied in respect of the present
case, which would enable the applicant to avail himself of domestic
settlement proceedings before the State Attorney's Office (see
Relevant domestic law below).
Subsequently,
on 12 October 2007, the Government submitted that section 25 of the
2006 Act was not applicable in the present case since the applicant's
right to a trial within a reasonable time had not been infringed in
the impugned domestic proceedings. Therefore, the Government refused
to offer the applicant a settlement proposal under section 25 of the
2006 Act.
The
applicant did not comment on this issue.
II. RELEVANT DOMESTIC LAW
The Act on the Protection of the
Right to a Trial without Undue Delay (Zakon
o varstvu pravice do sojenja brez nepotrebnega odlašanja,
Official Journal, No. 49/2006 – “the 2006 Act”)
became operational on
1 January 2007.
Section 25 lays down the following transitional rules in relation to
applications already pending before the Court:
Section 25 - Just satisfaction for damage sustained
prior to implementation of this Act
“(1) In cases where a violation of the right to a
trial without undue delay has already ceased and the party had filed
a claim for just satisfaction with the international court before the
date of implementation of this Act, the State Attorney's Office shall
offer the party a settlement on the amount of just satisfaction
within four months of the date of receipt of the case referred by the
international court for the settlement procedure. The party shall
submit a settlement proposal to the State Attorney's Office within
two months of the date of receipt of the proposal of the State
Attorney's Office. The State Attorney's Office shall decide on the
proposal as soon as possible and within four months at the latest...
(2) If the proposal for settlement referred to in
paragraph 1 of this section is not acceded to or the State Attorney's
Office and the party fail to negotiate an agreement within four
months of the date on which the party filed its proposal, the party
may bring an action before the court with jurisdiction under this
Act. The party may bring an action within six months of receipt of
the State Attorney's Office reply that the party's proposal referred
to in the previous paragraph was not acceded to, or after the expiry
of the period fixed in the previous paragraph for the State
Attorney's Office to decide to proceed with settlement. Irrespective
of the type or amount of the claim, the provisions of the Civil
Procedure Act concerning small claims shall apply in proceedings
before a court.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND
13 OF THE CONVENTION
The
applicant complained that the proceedings to which he was a party had
been excessively long. He relied on Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
In
substance, the applicant further complained that the remedies
available for excessively long proceedings in Slovenia were
ineffective.
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
The
Government argued that the applicant can no longer be considered a
“victim”, within the meaning of Article 34 of the
Convention. In this connection, the Government referred to the
settlement reached between the State Attorney's Office and the
applicant in another applicant's case (no. 21147/03) struck out by
the Court on 1 April 2008, in which the applicant also complained
about the excessive length of proceedings. According to the
Government, the proceedings in the case no. 21147/03 and
the proceedings in the present case relate to the same
factual background and the two sets of proceedings were
mostly conducted in parallel. As a result, the Government argued that
the applicant could not have suffered double prejudice and had
therefore already been awarded a sufficient amount in respect of both
sets of proceedings. The Government thus invited the Court to reject
the application as incompatible ratione personae
with the provisions of the Convention.
The
Court takes note of the settlement reached between the applicant and
the State Attorney's Office in the context of case no. 21147/03, in
which the State Attorney's Office acknowledged a violation of the
right to a trial within a reasonable time and offered to pay
compensation to the applicant for non-pecuniary damage. The
Court does not find it necessary to consider whether the compensation
paid to the applicant in respect of case no. 21147/03 could also
cover damages incurred in the present case, as it is clear that
by the above-mentioned settlement the State did not
acknowledge, either expressly or in substance, any violation of the
right to a trial within a reasonable time as far as the present case
is concerned. On the contrary, the Government instead argued that the
length of the domestic proceedings in the present case had not been
excessive (see paragraph 25 below). The Court therefore finds that
the applicant may claim to be a “victim” for the purposes
of Article 34 of the Convention, and dismisses the Government's
objection in this respect.
The Court further notes that the application is not
inadmissible on any other grounds and must therefore be declared
admissible.
B. Merits
1. Article 6 § 1
The Government submitted that the complaint under
Article 6 § 1 of the Convention was unsubstantiated, as the
impugned proceedings had lasted only five years and seven months
at three levels of jurisdiction, and must therefore be declared
inadmissible.
The
applicant contested that argument.
(a) Period to be taken into consideration
The
period to be taken into consideration began on 3 September 1998,
the date on which the applicant instituted proceedings in Celje
District Court, and ended on 5 June 2003, when the Celje
Higher Court decision was served on the applicant (see paragraph
14 above). It is true that the applicant subsequently lodged an
appeal on points of law with the Supreme Court. However, the time
elapsed for the proceedings before the Supreme Court could arguably
not be taken into consideration, as that appeal was rejected on
procedural grounds and was thus without any prospect of success. The
Court's view is that the applicant could not have been unaware that
his claim was below the statutory threshold, in particular as he had
been represented by a lawyer (see Kostovska v. the former Yugoslav
Republic of Macedonia, no. 44353/02, § 36,
15 June 2006). Accordingly, the proceedings lasted four years and
nine months, and two levels of jurisdiction were involved.
(b) The reasonableness of the length of
proceedings
The
reasonableness of the length of proceedings must be assessed in the
light of the circumstances of the case and with reference to the
following criteria: the complexity of the case, the conduct of the
applicant and the relevant authorities and what was at stake for the
applicant in the dispute (see, among many other authorities,
Frydlender v. France [GC], no. 30979/96, § 43, ECHR
2000-VII).
The
Court considers that the subject matter did not of itself present
special difficulties with regard to the facts or the law and finds
that the issue at stake in the proceedings could, in principle, be
regarded as of importance for the applicant.
As
to the applicant's conduct, it does not appear that the applicant
caused any significant delays in the proceedings.
With
respect to the conduct of the domestic courts, the Court notes in
particular that the first hearing was scheduled only on 27 September
2000; which was more than two years after the date the applicant
instituted the proceedings (see paragraphs 7 and 9 above) and that it
took the domestic authorities more than six months to serve the
first-instance decision on the applicant (see paragraph 11 above).
In
the circumstances of the present case and in the light of the
criteria laid down in its case-law (see, for example, Vidovič
v. Slovenia, no. 77512/01, §§ 16-18, 9 March 2006;
CvetreZnik v. Slovenia, no. 75653/01, §§ 16-18, 30
March 2006; PaZon v. Slovenia, no. 17337/02, §§ 16-18,
6 April 2006) the Court considers that length of the proceedings
was excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
2. Article 13
Article
13 of the Convention guarantees an “effective remedy before a
national authority” to everyone who claims that his rights and
freedoms under the Convention have been violated (see Klass and
Others v. Germany, 6 September 1978, § 64, Series
A no. 28). However, Article 13 requires a remedy in domestic law only
in respect of an alleged grievance which is an arguable one in terms
of the Convention (see Boyle and Rice v. the United Kingdom,
27 April 1988, § 52, Series A no. 131). Thus the
effect of this provision is to require the existence of an effective
remedy to deal with the substance of an “arguable complaint”
and to grant appropriate relief (see Kudła v. Poland [GC],
no. 30210/96, § 157, ECHR 2000-XI).
In the Government's view, the applicant had no
arguable claim for the purposes of Article 13 as his complaint under
Article 6 § 1 was unsubstantiated (see paragraph 25 above).
In
this connection, the Court recalls that it found a violation of
Article 6 § 1 in respect of the length of proceedings
(see paragraph 33 above). Hence, the applicant had an “arguable
complaint” of a violation of Article 6 § 1 and should
therefore have had an effective domestic remedy in that respect.
The
Court further observes that the transitional
provision of the 2006 Act, namely section 25, provides for the
procedure to be followed in respect of applications where the
violation of the “reasonable time” requirement has
already ceased to exist and which were lodged with the Court before
1 January 2007.
Pursuant to that provision the State Attorney's Office
shall offer an applicant a settlement proposal in respect of just
satisfaction within four months of notification of the application to
the Government. Within two months of receipt of the State Attorney's
Office's proposal, the applicant shall submit his or her proposal in
reply. The State Attorney's Office has then four months to state its
position regarding the settlement.
If the applicant's proposal for settlement is not
acceded to or the State Attorney's Office and the applicant fail to
negotiate an agreement within four months of the date on which the
applicant submitted his or her proposal, the applicant may bring a
civil claim, namely a “just satisfaction claim”, before
the competent court as provided by the 2006 Act. The claim must be
lodged within six months of the State Attorney's Office's refusal to
accept the applicant's proposal or of the expiry of the period within
which the State Attorney's Office should decide on the settlement.
The Court observes that it transpires from the text of
section 25, subsection 2 of the 2006 Act, that the opportunity
to lodge a “just satisfaction claim” is given only to
dissatisfied applicants upon receipt of a settlement proposal. As
regards the present case, the Court notes that the applicant has
never been offered a settlement proposal from the State Attorney's
Office because the latter considered that his right to a trial
without undue delay had not been breached.
Having regard to the above, the Court is not persuaded
that the applicant had access to the “just satisfaction claim”
and finds the remedies of the 2006 Act ineffective in these
particular circumstances. As regards the remedies available already
prior to the implementation of the 2006 Act, the Court sees no reason
to take a different approach to that taken in earlier cases in which
those remedies were considered ineffective (see Lukenda
v. Slovenia, no. 23032/02, 6 October 2005).
Accordingly, the Court considers that in the present
case there has been a violation of Article 13 on account of the lack
of a remedy under domestic law whereby the applicant could have
obtained a ruling upholding his right to have his case heard within a
reasonable time, as set forth in Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The applicant claimed EUR 24,000 in respect of
non-pecuniary damage.
The Government contested the claim.
The Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards him EUR 2,000 under that head.
B. Costs and expenses
The applicant also claimed EUR 1,130 for the costs and
expenses incurred before the Court. This claim was supported by
itemised list of expenses similar to the lists normally submitted to
the courts in domestic proceedings.
The Government did not comment on the claim.
According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the applicant,
who was represented by the lawyer, the full sum
claimed under this head, namely EUR 1,130.
C. Default interest
The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares by a majority the application
admissible;
Holds by five votes to two that there has been a
violation of Article 6 § 1 of the Convention;
Holds by five votes to two that there has been a
violation of Article 13 of the Convention;
Holds by five votes to two:
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) EUR 2,000 (two thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,130 (one thousand one hundred and thirty
euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 19 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges Myjer
and López Guerra
is annexed to this judgment.
J.C.M.
S.Q.
JOINT DISSENTING OPINION OF JUDGES MYJER AND López
Guerra
Unlike
the majority we do not consider that there has been a violation of
Article 6 in this case, and therefore not of Article 13 either.
We
accept that the total period to be taken into account is five years,
seven months and twenty days, as the Slovenian Government submitted.
During that time three levels of jurisdiction were involved.
It
was the applicant himself who on 20 June 2003 lodged an appeal on
points of law with the Supreme Court. The fact that the Supreme Court
on 1 April 2004 rejected the appeal on the ground that the value
of the claim fell below the statutory threshold does not, in our
opinion, justify the finding of the majority in paragraph 27 of the
judgment, namely that the time that elapsed in the proceedings before
the Supreme Court ought not to be taken into consideration as that
appeal was rejected on procedural grounds and thus lacked any
prospect of success. The underlying aim of the reasonable-time
requirement is that parties to proceedings should not be left in a
state of uncertainty about the outcome of their case for too long. If
a party is dissatisfied with the judgments of the domestic court at
first instance or at an intermediate level and burdens the higher
national court with an appeal, that party should not in addition have
the benefit of reasoning by our Court baldly stating that it will not
take into account the last period and the extra level of jurisdiction
involved. In the personal perception of the applicant he apparently
had to wait for the final outcome of his case at national level from
the day he started the civil proceedings until the day the decision
of the Supreme Court was served on him. So it should come as no
surprise to him that our Court should take that whole period into
account when deciding whether or not the applicant was left in a
state of uncertainty for too long.
The
position may be different if, and only if, an applicant wishes to
pursue further domestic remedies but has genuine reason to doubt
their effectiveness. In such a case it is not unacceptable for the
applicant – in order not to run the risk that his application
will be rejected under the six-month rule or under the rule on
non-exhaustion of domestic remedies – to lodge an application
before embarking on the further national remedy, as long as he
informs our Court accordingly. In this particular case the appeal was
lodged on 20 June 2003, whereas the application to the Court was
brought four days later, on 24 June 2003.
We
are fully aware that, according to our case-law, an applicant who
brings an unnecessary or inappropriate appeal and then waits until
the final decision before lodging an application with the Court faces
the danger that his application will be declared inadmissible as out
of time. But that is a different matter. In the case at hand the
applicant brought an appeal at national level and at (almost) the
same time he lodged an application with the Court. That made his case
admissible as far as the six-month rule is concerned. On a
substantive level, however, we cannot help feeling that the applicant
wants to have it both ways: that is, proceedings before the Court
running in parallel with the domestic proceedings. We consider that,
in assessing the length of the proceedings for the purposes of
Article 6 of the Convention, the total length of the proceedings at
all domestic levels of jurisdiction should be taken into account in
such a case.
As
far as the reasonableness of the total length of proceedings is
concerned, we are not convinced that in the particular circumstances
of the case – even taking into account the interests at stake –
a total period of five years, seven months and twenty days at three
levels of jurisdiction is excessive. Moreover, it does not appear
that it is only the respondent State which can be blamed for the time
that elapsed. One may query whether the applicant, who, before the
actual hearing could take place, filed preliminary submissions in
which he modified his claim as regards interest, and on one occasion
reduced his claim, had sufficiently prepared his case when he went to
court in the first place.
